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Smith v. Parris

Court of Criminal Appeals of Tennessee, Jackson

November 30, 2017

JIMMY L. SMITH
v.
MIKE PARRIS, WARDEN

          Assigned on Briefs November 7, 2017

         Appeal from the Circuit Court for Lake County No. 17-CR-10357 R. Lee Moore, Jr., Judge

         Jimmy L. Smith, the Petitioner, filed a pro se Application for Writ of Habeas Corpus ("the petition"), claiming that his convictions in Counts 1 through 4 of Case Number 87F1868 are void because the Davidson County District Attorney General only signed Count 5 of the multi-count indictment. The Petitioner also claimed that his conviction in Count 2 was void because the judgment failed to state that he had been found guilty by a jury. The habeas corpus court summarily dismissed the petition. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Jimmy L. Smith, Tiptonville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; and Phil Bivens, District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Procedural Background

         The Davidson County Grand Jury indicted the Petitioner in September 1987 in case number 87F1868. The five-count indictment charged the Petitioner in Count 1 with Aggravated Kidnapping, Count 2 with Aggravated Rape, Counts 3 and 4 with Aggravated Sexual Battery, and Count 5 with Aggravated Robbery. The indictment was signed at the bottom of Count 5 by the Davidson County District Attorney General. Following a jury trial, the Petitioner was convicted of Counts 1 through 4 and ordered to serve an effective 115-year sentence. The Petitioner was found not guilty of Count 5. The convictions and sentence were affirmed on appeal. State v. Jimmy L. Smith, No. 88-177-III, 1989 WL 51613, at *2 (Tenn. Crim. App. May 19, 1989), perm. app. denied (Tenn. Aug. 14, 1989).

         On March 30, 2017, the Petitioner filed what he stated was his fifth application for writ of habeas corpus, claiming that the judgments in case number 87F1868 were void because the district attorney general failed to sign each page of the indictment and because the judgment of conviction for Count 2 failed to state that he was convicted by a jury.[1] Following the summary dismissal of his petition, the Petitioner timely appealed.

         Analysis

         On appeal, the Petitioner claims that the habeas corpus court erred in holding that the district attorney general is not required to sign each count of the indictment and that his judgment in Count 2 was not void. The State avers that the habeas corpus court properly dismissed the petition because the petition failed to state a cognizable claim. We agree with the State.

         Habeas corpus relief may only be granted in limited circumstances. Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008). Unlike petitions for post-conviction relief, "the purpose of the habeas corpus petition is to contest void and not merely voidable judgments." Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). "Habeas corpus relief is available in Tennessee only when 'it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered' that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of imprisonment or other restraint has expired." Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868)). A petitioner bears the burden of establishing by a preponderance of the evidence that a judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus petition may be summarily dismissed without a hearing when the petition "fails to ...


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